Equal Opportunity Tribunal of New South Wales CITATION: Spiteri -V- Manly Pacific International Hotel Pty Ltd Trading As Manly Pacific Parkroyal [1997] NSWEOT COMPLAINANT: Edward Spiteri RESPONDENT: Manly Pacific International Hotel Pty Ltd trading as Manly Pacific Parkroyal NUMBER: 27 of 1994 Ms Penny Goode ( Judicial Member ) TRIBUNAL: Ms M Alt Mr L Lau GROUNDS OF COMPLAINT: Physial Impairment DATES OF HEARING: 05/22/1995; 05/23/1995; 05/24/1995; 07/24/1996; 07/25/1996 DATE OF JUDGMENT: 08/12/1997 Complainant: Ms M Hannon Disability Discrimination Legal Centre Ms A Healey (Counsel) LEGAL REPRESENTATIVES: Respondent: Mr P Brown Baker McKenzie Mr R Crow (Counsel) JUDGMENT IN FAVOUR OF: Background From October 1988 to 31st August 1993, the Respondent employed the Complainant in a number of capacities, including kitchenhand, bus boy and casual canteen attendant. In November 1989, while working as a bus boy, he sustained an injury to his back by lifting a waiter's station in Nell's Restaurant. As a consequence, in January 1993 he was moved to "light duties" in the staff canteen as a casual attendant. He was dismissed in August 1993, allegedly on the ground of the physical impairment to his back. The Complainant was born in Malta and is 33 years old. He speaks English as a second language with a distinct accent and he is unable to read or write in English. He also has some difficulty with literacy in his own language. Consequently, when he attended the offices of the Anti-Discrimination Board ("the Board") on 13th September 1993 to lodge a complaint that he had been unlawfully discriminated against by the Respondent, an officer of the Board assisted him by writing out his complaint for him. In his complaint, he alleged that the Respondent had dismissed him on the ground of his physical impairment. He also alleged that, since injuring his back, he had been "constantly hassled" by his manager, Mr Fielding-Moore. It is common ground that the Complainant has an impairment to his back because of the injury he sustained at work in November 1989. It is also common ground that he arrived at work on 29th August 1993 without being clean shaven and that when Mr Fielding-Moore asked him to shave, he declined to return home to do so. However, there is no agreement between the parties as to the details of this conversation or what transpired during the course of a physical struggle which subsequently ensued between the Complainant and the Respondent's security manager, Mr Meade. While the Complainant alleges that he was dismissed by Mr Fielding-Moore on 29 August 1993 after he declined to return home to shave, the Respondent contends that it did not dismiss him until 31 August 1993 when Ms Lesser, the Hotel's Personnel and Training Manager at the relevant time, informed him by letter that his employment had been terminated "in response to [his] aggressive behaviour towards management when a reasonable request was made of [him]". After investigating the Complainant's allegations, the President of the Board referred the complaint to the Tribunal pursuant to s.91(2) of the Anti-Discrimination Act ("the Act"). When the matter first came before the Judicial Member of the Tribunal, the Complainant was unrepresented and, understandably, he had considerable difficulty complying with the Tribunal's directions to file the appropriate documents. While he subsequently received some legal assistance in the preparation of these documents, he was not represented by his present solicitors until October 1995. Partly as a consequence of this history, the exact nature of his case did not emerge with any clarity until the present hearing and, in the circumstances, a considerable degree of latitude was given to him, pursuant to s.108(1) (b) of the Act, to amend his Points of Claim. The Complainant's Case We understand the Complainant's case to be that the Respondent unlawfully discriminated against him on the ground of his physical impairment, pursuant to s.49 B(2) of the Act, in the following ways : (1) By dismissing him. (2) By affording him less favourable terms or conditions of employment and/or subjecting him to detrimental treatment during the course of his employment. With respect to the conduct referred to in both categories (1) and (2), we understand the Complainant's case to be that the Respondent engaged in direct discrimination within the meaning of s.49A(1) of the Act (in force at the relevant time) and/or indirect discrimination within the meaning of s.49A(3) (in force at the relevant time). The indirect discrimination case in respect of each category is pressed on two bases; first, that the Complainant was unable to meet the Hotel's grooming standard and secondly, that he was unable to lift certain objects in the course of his duties. In relation to the first mentioned indirect discrimination case, the Complainant alleges that the Respondent imposed a requirement on him that he comply with the Hotel's grooming standard; that a substantially higher proportion of persons without the Complainant's impairment are able to comply with this requirement; and that in the circumstances it was not reasonable to require the Complainant to comply. In relation to the remaining indirect discrimination case, the Complainant alleges that the Respondent imposed a requirement on him that he lift certain objects which, because of their weight, adversely affected his health or posed a risk to his health; that a substantially higher proportion of persons without the Complainant's impairment are able to comply with this requirement without adversely affecting or risking their health; and that in the circumstances it was not reasonable to require the Complainant to comply. The differences between direct and indirect discrimination were analysed by the High Court in Waters & Ors v Public Transport Corporation (1991) EOC 92-390; for example, in their joint judgment, Dawson and Toohey JJ expressed the following view at EOC p. 78, 693 : "The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable." See also Mason CJ and Gaudron J at EOC pp.78, 672-78, 673 and Dawson J in Australian Iron & Steel Pty. Ltd. v Banovic & Anor (1989) EOC 92-271 at pp. 77, 736-77, 737. The Respondent's Case The Respondent concedes that in the six month period prior to the lodging of his complaint with the Board, the Complainant was a physically handicapped person as defined in the Act. Otherwise, it denies the allegations and denies that its conduct falls within either ss.49B(2) (a) or (c). It does not rely on any defence or exception under s.49I(2). Inquiry under s.49B(2) It seems clear that the inquiry under s.49B(2) of the Act is directed to the ground of the alleged differential treatment afforded to the Complainant. In this regard, even if the Respondent had no motive or intention to discriminate, its conduct may still be characterised as discriminatory within the meaning of s.49B(2). This view is consistent with the underlying philosophy of the Act as well as with a significant line of authority : see, for example, the joint judgment of Mason CJ and Gaudron J in Waters & Ors v Public Transport Corporation op. cit. at EOC p. 78, 674 and the judgment of Clarke JA in Waterhouse v Bell (1991) EOC 92-376 at pp. 78, 589-78, 590. Further, provided that an operative ground of the differential treatment is one of those mentioned in s.49A(1) or s.49A(3), it does not matter that there may have been an additional ground which falls outside s.49A : see Waterhouse v Bell , supra, per Clarke JA at EOC pp. 78, 588 - 78, 589 and Holdaway v Qantas Airways Limited (1992) EOC 92-395 at pp. 78, 809 - 78,810. Thus, for example, in relation to the Complainant's claim that the Respondent unlawfully discriminated against him by dismissing him, provided the Complainant can establish that his physical impairment was an operative ground of the dismissal, he is still entitled to succeed even though there may have been additional reasons for dismissing him which do not contravene the Act. (Cf. s.4A of the present Act which did not come into effect until 8th August 1994.) Standard of Proof In determining whether the Complainant has established his case, we have applied the civil standard of proof. However, in doing so, we have taken into account the gravity of the allegations and the serious consequences of any adverse findings to the Respondent. See the remarks by Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 pp. 361-362. See also O'Callaghan v Loder (1984) EOC 92-024 at pp. 75, 511- 75, 512. Relevant Provisions of the Act At all relevant times, the terms "physical impairment" and "physically handicapped person" were defined in s.4(1) of the Act as follows : "'[P]hysical impairment', in relation to a person means any defect or disturbance in the normal structure and functioning of the person's body, whether arising from a condition subsisting at birth or from illness or injury, but does not include intellectual impairment." "'[P]hysically handicapped person' means a person who, as a result of having a physical impairment to his body, and having regard to any community attitudes relating to persons having the same physical impairment as that person and to the physical environment, is limited in his opportunities to enjoy a full and active life." At all relevant times, ss.49A(1), 49A(3) and 49B(2) provided :- "49A(1) A person discriminates against a physically handicapped person on the ground of his physical impairment if, on the ground of - (a) his physical impairment; (b) a characteristic that appertains generally to persons having the same physical impairment as the physically handicapped person; or (c) a characteristic that is generally imputed to persons having the same physical impairment as the physically handicapped person, he treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person who is not a physically handicapped person. 49A(3) A person discriminates against a physically handicapped person on the ground of his physical impairment if he requires the physically handicapped person to comply with a requirement or condition - (a) with which a substantially higher proportion of persons who are not physically handicapped persons comply or are able to comply; (b) which is not reasonable having regard to the circumstances of the case; and (c) with which the physically handicapped person does not or is .not able to comply. 49B(2) It is unlawful for an employer to discriminate against an employee who is a physically handicapped person on the ground of his physical impairment - (a) in the terms or conditions of employment which he affords him; (b) by denying him access, or limiting his access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or (c) by dismissing him or subjecting him to any other detriment." Physically Handicapped Person As mentioned previously, the Respondent concedes that in the six month period prior to 13th September 1993, the Complainant was a "physically handicapped person" as defined in the Act. We propose to act upon that concession, although we note that for some unknown reason it does not relate to the entire period of the Complainant's employment in the staff canteen. Based on the evidence given by Dr. Hudson, an orthopedic surgeon specialising in injuries to the lumbar spine, we are satisfied that the Complainant is, and was at all relevant times, a physically handicapped person within the meaning of s.4(1). Dr. Hudson gave evidence that the Complainant has lumbosacral disc degeneration, resulting in a 20% impairment to his back, and that since the injury, he has had a low back pain with the sequelae of inability to lift and bend and subsequent chronic pain syndrome and depression. As a consequence of the permanent impairment of his lumbar spine, it is clear that the Complainant is thereby limited in his opportunities to enjoy a full and active life. The Evidence and Our Findings In order to determine the issues raised by the various claims of unlawful discrimination, it is necessary to consider the evidence presented in the respective cases for the Complainant and the Respondent in some detail. We discuss the evidence and our findings in respect of each claim in turn below. It is convenient to deal first with the claim that the Respondent unlawfully discriminated against the Complainant on the ground of his physical impairment by dismissing him. Since the Complainant alleges that the Respondent engaged in both direct and indirect discrimination, we propose to consider the issue of direct discrimination first and to proceed only to a consideration of indirect discrimination if we make no finding that the Respondent directly discriminated against the Complainant. (A) THE DISMISSAL 1. Direct Discrimination In relation to the claim of direct discrimination, we understand Ms Healey, counsel for the Complainant, to be putting the case on two separate bases. First, on a number of circumstantial matters which she maintains cast sufficient doubt on the genuineness of the official reason given for the Complainant's dismissal so as to ground the inference that his physical impairment was an operative factor in the decision to terminate his employment. Secondly, on the Respondent's failure either to afford the Complainant an opportunity to respond to the version of the events of 29th August 1993 provided by Mr Fielding-Moore and Mr Meade or to have due regard to the fact that it was the only incident where the Complainant had displayed any form of aggression in his entire work history with the Respondent. In relation to the second issue, Ms Healey submits that an employee without the Complainant's impairment would not have been subjected to such unfavourable treatment. It will emerge later in these reasons that the two issues relied on by Ms Healey are, in fact, not separate and that the second issue is embraced by the first. Mr Crow, counsel for the Respondent, contends that Ms Healey's submissions are without foundation. He submits that the evidence points conclusively to the view that the Complainant's employment was terminated, by letter dated 31st August 1993, on the ground of his aggressive behaviour to other employees on 29th August 1993. In order to determine the genuineness of the reason given by the Respondent, it is necessary to examine first, the events of 29th August to 31st August 1993, and secondly, the reasonableness of the request that the Complainant be clean shaven, which was issued to him on 29th August 1993. The Events of 29th August to 31st August 1993 The Complainant gave evidence that at the relevant time he lived in Pine Street, Manly which was about a ten minute walk from the Hotel, although it usually took him much longer. He said he often caught a taxi. On Sunday, 29th August 1993, he said he went to work without having shaved effectively that morning. Although Mr Fielding-Moore initially gave him a verbal warning, he said he subsequently told him he wanted a reasonable answer as to why he had not shaved. When he replied, "Because of the pain in my back", he said Mr Fielding-Moore told him that it was an excuse and to go home and shave. The Complainant said he responded by saying, "I can't go back home to have a shave. I can't walk because of the pain in my back affecting my leg". He said Mr Fielding-Moore then told him that he was fired because he had not shaved and because he refused to do so. When he replied, "You can hardly see it. The Head Chef doesn't shave", he said Mr Fielding-Moore told him that there were different standards for him and repeated that he was fired. The Complainant's reason for not leaving the premises was that his back was "playing up" and he was unable to walk. The Complainant gave evidence that when this conversation took place, he was alone in the staff canteen with Mr Fielding-Moore. He also said that after leaving the room for a few minutes, Mr Fielding-Moore returned with the Security Manager, Mr Meade, and closed the door behind him. As Mr Meade walked towards him, he said he asked him not to touch him because of his back injury. He then said he "just panicked" and picked up his umbrella to keep him away from him. He denied that he had waved the umbrella at Mr Meade and Mr Fielding-Moore but said that he had slammed it on the table, telling Mr Meade not to touch him. After ignoring him, he said, Mr Meade "slammed" him into the wall, grabbed his shirt and turned him around by pulling his hands behind his back. He said that during this time Mr Meade put great pressure on his back, causing him pain in both his back and leg. Although the police were called, he said they refused to listen to his version of the events and that he left the premises shortly thereafter. In cross-examination, he conceded that Mr Fielding-Moore had told him that he would be paid for the day's work. However, he denied that Mr Meade had told him that he would be suspended and that he was to report to Ms Lesser when he returned to work. He said Mr Fielding-Moore told him that he did not want to see him on the premises any more. Mr Fielding-Moore gave evidence that on the morning of 29th August 1993, he noticed that the Complainant was not clean shaven. He said he asked the Complainant, "Have you shaved today, Eddie?" to which he replied, "No". He then said to him : "Are you aware that you have to be clean shaven? This applies to both front and back of the house employees. You can shave here in the hotel or go home, shave and return to work." He said that although he could not recall the precise words of the Complainant's reply, he recalled that the Complainant was not prepared to either shave in the hotel or go home, shave and return to work. As a consequence, he said he contacted Mr Meade and returned with him to the staff canteen. He said that as they were approaching the Complainant, he picked up an umbrella, waved it at them and hit it on the side of the table. He also said that a physical struggle then occurred between Mr Meade and the Complainant with the umbrella, whereupon Mr Meade told him to call the police. After the police had interviewed the Complainant and Mr Meade, he gave evidence that Mr Meade said to the Complainant : "You are to go home Eddie, you are suspended and you are to report to Mrs Hewitt [i.e. Ms Lesser] when you return to work." Mr Fielding-Moore also said that when the Complainant asked about his pay, he said to him that he would be paid for the day's work. In cross-examination, he conceded that it was possible that he had initially given the Complainant a warning before telling him that he wanted a reasonable excuse as to why he had not shaved. He also conceded that it was possible that the Complainant had told him it was because of the pain in his back, to which he replied that it was an excuse and that he wanted him to go home and shave. He further conceded that the Complainant could have told him, "I can't go back home to have a shave. I can't walk because of the pain in my leg." He also said that he was frustrated with the Complainant because it was not the first time that he had failed to come to work clean shaven. He denied, however, telling him that he was fired because he had not shaved and because he refused to do so. He also denied saying to him that there were different shaving standards for the Head Chef. In relation to the incident with Mr Meade, he denied that the Complainant had been slammed into the wall. He said the most aggressive thing that happened during the incident was the Complainant slamming the umbrella on the table. Mr Meade gave evidence that, in the course of his employment with the Respondent, he was required to record security related events in the Security Occurrence Log and that on 29th August 1993 he prepared an entry in relation to the Complainant at 11:25 am, which was 25 minutes after the Complainant left the Hotel. The beginning of the entry, entitled "Employee Sent Home", is significant and reads as follows :- "At 11:00 am, Restaurants Manager Stephen Fielding-Moore informed me that he had asked an employee to leave the hotel, but that the employee refused. He further explained that he had asked staff room meal attendant Mr Edward Spiteri to shave his face, as he had stubble beard growth, not up to grooming standards of the hotel. Stephen further stated that Edward had refused to shave, or return home to shave. Stephen stated he then asked Edward to leave the hotel premises since he was not up to grooming standards, and hence not fit for work. Edward had refused." Based on his Occurrence Log entry, Mr Meade gave evidence that when he and Mr Fielding-Moore were in the staff canteen, the Complainant picked up a large, furled, heavy, golf-style umbrella and "brandished" it towards them. He said the Complainant yelled, "Get him away from me", as he pointed the umbrella initially at Mr Fielding-Moore and then at both of them. When he told the Complainant to put the umbrella down, he said the Complainant said "No" and yelled, "You bastards", before waving the umbrella well above his head with both hands and slamming it down with great force on the trolley between them. He said that at the time he felt that he and Mr Fielding-Moore were being physically threatened and he could see that the Complainant was in a state of mind where he was extremely agitated. After disarming the Complainant of the umbrella, he said he was pushed forcefully by the Complainant. He then restrained him and asked him several times to calm down. The Complainant then struggled fiercely and, because he began to fear that he could not contain him on his own, he called out to Mr Fielding-Moore, who, by this time, had retreated into the corridor between the staff canteen and Nell's Restaurant, to call the police. The Complainant then said to him, "Bob, I will calm down now", and he released him. Mr Meade also gave evidence that after the police arrived, the Complainant again became extremely agitated. In the presence of the police, he said, the Complainant said he was not going to leave the premises because he was being cheated out of his pay on that day and that he should be treated differently because he was under psychiatric care. He also said the Complainant told the police that there was an agreement in place that he did not have to shave if it was too difficult for him to do so. In cross-examination, he denied that the Complainant had said he should be treated differently because of the injury to his back. After the police advised the Complainant to come to work the following day to sort the matter out, he said the Complainant became agitated again and said that Monday was his day off. Consequently, he said that he told him to see Ms Lesser on Tuesday and that Mr Fielding-Moore then told him that he would be paid for two hours work. He said the Complainant then left the premises. The evidence discloses that later that day Mr Meade wrote a memorandum to Ms Lesser. In the memorandum, he expressed the view that the Complainant was a dangerous person and, accordingly, that Ms Lesser should not see him alone as he may become aggressive. The concluding paragraph of the memorandum states as follows : "If a decision is made to terminate Edward's employment, then it would be advisable to have him never return to the hotel premises. I think if he sees me again that it could trigger another incident, and he also feels violently towards Stephen Fielding-Moore." In cross-examination, Mr Meade conceded that, in retrospect, some of the conclusions he drew in his memorandum were no longer accurate. Significantly, he said that he no longer considered the Complainant to be a dangerous person. However, he said that at the time he wrote the memorandum to Ms Lesser, he felt it was prudent and necessary advice. Like Mr Fielding-Moore, he said that the Complainant's face was not clean shaven and that the most violent thing that happened during the incident was the Complainant slamming the umbrella down on the trolley. He denied that Mr Fielding-Moore had either closed the door behind him when they entered the staff canteen together or that the Complainant had told him not to touch him. Although he denied slamming him into the wall, he said that, when he grabbed him, he held his right wrist up behind his back while holding onto his left arm. In doing so, he acknowledged that he had not taken specific account of the Complainant's back injury, despite being aware of it. He also conceded that, although he had intended to do so, he had not asked the Complainant to go home and shave. Ms Lesser gave evidence that, on the basis of Mr Meade's memorandum and the Security Occurrence Log entry of 29th August 1993, she decided to terminate the Complainant's services. She said that the Complainant did not attend for work on 31st August 1993 and that, as a consequence, the letter of termination was personally delivered to the Complainant's home by one of the Hotel's security staff. In cross-examination, she said she had made the decision to terminate the Complainant's services after discussing the matter with the Hotel's General Manager. When asked whether she could have made arrangements to speak to the Complainant when deciding whether to terminate his employment, she said that in the circumstances she had accepted what had been told to her. It is common ground that neither Mr Fielding-Moore nor Mr Meade had the authority to dismiss the Complainant, although they both had the authority to suspend his employment. While Mr Fielding-Moore said he was not included in the ultimate decision to dismiss the Complainant, he said he had expressed the opinion to Ms Lesser that his services should be terminated on the basis of his behaviour towards Mr Meade. Findings In respect of the events of 29th August 1993, it is clear that there are some marked differences between the account given by the Complainant, on the one hand, and the respective accounts given by Mr Fielding-Moore and Mr Meade, on the other hand. Based on his demeanour when giving evidence and the answers he gave in cross-examination, Ms Healey submits that Mr Meade was not entirely a truthful witness and that he had exaggerated the incident and minimised his own involvement. For various reasons, we do not accept this submission. First, we found him to be a reliable and credible witness. Secondly, his oral evidence was consistent with the report he prepared 25 minutes after the Complainant left the hotel. Thirdly, he gave his evidence with care and precision and there was nothing about his demeanour or the way he gave his evidence to suggest that he was prevaricating or being evasive. Fourthly, he impressed us as a frank witness. He readily conceded that his training in the calming of agitated persons had failed him in the case of the Complainant and that subsequent events had shown that the Complainant was not, in fact, a dangerous person as described by him in his memorandum to Ms Lesser. By way of contrast, we did not find the evidence given by the Complainant, Mr Fielding-Moore and Ms Lesser respectively to be entirely satisfactory. In making an assessment of the Complainant's credibility and in deciding whether to prefer his version of events over the version given by the Respondent's witnesses, we have taken into account his level of literacy, the fact that English is not his primary language and Dr. Hudson's evidence that he has developed an adverse nervous reaction to his painful disability. We are satisfied that the inconsistencies and contradictions in the Complainant's evidence can, in many instances, be explained by these limitations, rather than a finding that he was being untruthful or that his account lacked credibility. However, on other occasions, we found his evidence to be lacking in detail and reliability. Similarly, on occasions, we found the evidence given by Ms Lesser and Mr Fielding-Moore respectively to be unreliable and their recollection of events to be either poor or selective. On some occasions, their evidence was simply implausible. Accordingly, where there is an important conflict between their evidence and that given by the Complainant, we have found it necessary to make a specific determination in relation to each occasion. Where there is a significant conflict between the Complainant's evidence and that given by Mr Meade, we prefer the evidence given by Mr Meade. In relation to the events of 29th August 1993, which occurred prior to Mr Meade's intervention, we make the following findings. We accept that the Complainant told Mr Fielding-Moore that he had not shaved because of the pain in his back and that Mr Fielding-Moore told him it was an excuse. While it is likely that Mr Fielding-Moore told the Complainant to shave, or go home to shave, we are not satisfied that he expressly gave him the option of shaving in the Hotel. Had he done so, it is reasonable to expect that the Security Occurrence Log entry would have included a specific reference to it. The relevant part of the entry reads, "Stephen further stated that Edward had refused to shave, or return home to shave". Moreover, Mr Meade states later in the entry that it was his intention to ask the Complainant to "go home and have a shave" prior to continuing work. He does not state in the entry that it was his intention to ask him to shave either in the Hotel or at home. It is significant, too, that Mr Fielding-Moore initially said in cross-examination that he had not told the Complainant that he could shave in the Hotel. We are also satisfied that the Complainant said to Mr Fielding-Moore that he could not walk home to have a shave because of the pain in his back. However, we do not accept that Mr Fielding-Moore told the Complainant that he was fired. Mr Fielding-Moore did not have the authority to dismiss the Complainant. The Complainant said he was aware of this. The Security Occurrence Log entry suggests that Mr Fielding-Moore told Mr Meade that he had asked the Complainant to leave the premises because he did not comply with the Hotel's grooming standard. In the circumstances, we consider it likely that Mr Fielding-Moore told the Complainant to leave the premises but that the Complainant interpreted this as meaning that his services were being terminated. We are also satisfied that the Complainant said to Mr Fielding-Moore that the Head Chef didn't shave and that Mr Fielding-Moore replied with words to the effect that a different standard applied to him. Evidence was given by Ms Lesser that, although the Head Chef had a full beard, he met the Hotel's grooming standard because it was neat. It is therefore reasonable to infer that, in these circumstances, the Hotel did not require him to be clean shaven. In relation to the events which occurred in Mr Meade's presence, we prefer the account given by Mr Meade. We do not accept that the Complainant was "slammed" into the wall. Had this occurred, it is reasonable to expect that Dr. Hudson would have noticed some bruising on the Complainant's back when he examined him. Instead, Dr. Hudson said he observed bruising on his left arm, which was consistent with having been grabbed. As a consequence of the physical struggle between the Complainant and Mr Meade, we accept that the Complainant experienced pain in his back and shooting pains down his leg. Indeed, the Security Occurrence Log entry shows that the Complainant struck his left leg with extreme force with his umbrella but showed no sign of pain. Mr Meade said the Complainant did this to demonstrate how his legs had been affected by numbness as a consequence of the previous injury to his back. While this may be so, it is likely that the numbness in the Complainant's legs was aggravated by the physical struggle with Mr Meade. We accept that the Complainant panicked when he saw Mr Meade enter the staff canteen and that he did so because he was afraid of hurting his back. Dr. Hudson said that the Complainant did not like or trust anyone touching his back and that, for this reason, physiotherapy had been unsuccessful. In fact, the Complainant himself said that he had gone "berserk" when a physiotherapist had rubbed her hand on his back some time after the initial back injury in November 1989. Had the Complainant not panicked when he first saw Mr Meade, there is no reason why the issue of his unshaven face could not have been satisfactorily resolved, particularly as Mr Meade had earned the Complainant's trust and been friendly with him at work over a long period of time. Before we specifically discuss the reasonableness of the request that the Complainant be clean shaven, which was issued to him on 29th August 1993, it is necessary to trace the background leading to the request being made. Reasonableness of Request to be Clean Shaven The evidence discloses that the Respondent's grooming standard required that its male employees either be clean shaven or that they have a neat beard. It is not in dispute that two disciplinary notices were given to the Complainant by Mr Fielding-Moore for failing to be clean shaven on 19th February 1993 and 18th April 1993. The notice of 19th February suggests that the Complainant had been verbally warned on prior occasions about coming to work without being clean shaven. No explanation is included in the notice as to why the Complainant had apparently not shaved on either 19th February or on occasions prior to this. The notice of 18th April 1993 states that the Complainant's reason for not shaving was that he "didn't have time". It also states the following : "As this is neither the first time Eddie has been warned of his lack of shaving, and is far from his first ever warning on file, future offences will result in his suspension from employment." This was confirmed in a typed memorandum dated 18th April 1993 to Ms Lesser. It is not in dispute that, at the relevant time, the Respondent had a policy of suspending employees if they had been given three disciplinary notices in relation to the same matter. Although the Complainant's signature appears on both notices, he denied that Mr Fielding-Moore had read them to him. He said that his wife subsequently read the notice of 18th April 1993 to him but that no-one read the earlier notice to him. Mr Fielding-Moore denied that he had omitted to read the notices to the Complainant, although he conceded that at the time he did not know that the Complainant was unable to read English. We consider it unlikely that Mr Fielding-Moore read either of the disciplinary notices to the Complainant. In any event, since the Complainant's wife read the second notice to him, it is clear that he was aware that a third warning for not being clean shaven could result in his suspension from employment. In respect of the warning issued on 18th April, we accept the Complainant's evidence that he told Mr Fielding-Moore that he had been unable to shave because of the pain in his back and that he only proffered the reason that he "didn't have time" after Mr Fielding-Moore repeatedly pressed him by saying he needed a reasonable answer. In this regard, it is significant that Mr Fielding-Moore conceded in cross-examination that it was possible that the Complainant had told him that he had been unable to shave because of the pain in his back. There is no mention made in either notice of an arrangement which had allegedly been reached with the management of the Hotel whereby the Complainant did not have to shave on occasions when his back caused him too much pain to do so. It is the Complainant's case that such an arrangement had been reached with the assistance of the Australian Liquor Hospitality and Miscellaneous Workers' Union ("the Union"). The Respondent denies the existence of any such arrangement. During the course of its investigations into the present complaint, the Board was informed by the then Personnel and Training Manager, Ms Keogh, on 28th March 1994, that she had not been able to locate any written or verbal evidence to support the claim that the Complainant had entered into an agreement with the Hotel whereby he did not have to shave. However, she went on to say in her letter : "I believe discussions Edward had with the hotel representative at the time indicated that the hotel was endeavouring to support him as much as possible whilst recovering from his injury, and inferred that, although grooming standards would not be waived completely, consideration would be given to the difficulty of performing the task of shaving due to the nature of his injury, if his standard of grooming was ever in question." ( Tab 4, President's Report) Both Ms Lesser and Mr Fielding-Moore denied the existence of any such agreement. Ms Lesser said that if there had been any negotiations with the Union on the issue, she would have been involved in her capacity as Personnel and Training Manager and would have documented them. This evidence is at odds with the Complainant's evidence that while he was employed in the staff canteen, a Union officer spoke to Ms Lesser, in his presence, about the requirement that he be clean shaven. However, he was unable to say at what stage in 1993 this discussion occurred. Ms Lesser said that the Complainant had come to see her after Mr Fielding-Moore had reprimanded him for not shaving and she had explained to him then that if he was unable to meet the Hotel's grooming standard, she needed to see a doctor's certificate to that effect. However, she denied any input from the Union on the issue. Mrs Keogh's letter of 28th March 1994 to the Board makes it clear that there were some discussions with the Union on the issue of the Complainant's inability to shave on occasions. Unfortunately, no-one was called from the Union to resolve the matter and the Complainant was unable to recall the name of the relevant officer. Significantly, however, Mrs Keogh's letter does not state that the Hotel's grooming standards would be waived completely but that "consideration" would be given to any difficulties the Complainant had shaving. Although Ms Lesser denied the existence of any agreement with the Union on the issue, her discussion with the Complainant concerning the Hotel's grooming standard suggests that "consideration" would be given to any difficulties the Complainant had shaving provided he could produce an appropriate doctor's certificate. It is common ground that he did not do so. In view of Mrs Keogh's letter to the Board, we are satisfied that a Union representative discussed the issue of the Complainant's shaving difficulties with Ms Lesser some time in 1993. We are not satisfied, however, that an agreement was reached whereby the Complainant did not have to shave on occasions when his back caused him too much pain to do so. Rather, we consider it likely that Ms Lesser told the Union representative that consideration would be given to any difficulties the Complainant had shaving and that she explained to the Complainant, either at that meeting or subsequently, that he needed to produce some supporting medical documentation. It is the Respondent's case that the request that the Complainant be clean shaven was reasonable because first, it was made in compliance with the Hotel's grooming standard and, secondly, there is no evidence that the Complainant was unable to comply with the standard. When determining the reasonableness of the request, we do not consider we should confine our attention to these two matters. We note, however, that in the present context the determination of the reasonableness of the request involves a consideration of issues which are similar to the issues involved in the determination of reasonableness pursuant to the indirect discrimination provisions of the Act set out in s.49A(3)(b). The Reasonableness of the Grooming Standard As mentioned previously, the grooming standard required male employees to either have a neat beard or be clean shaven. Ms Lesser said that at the relevant time there were three employees, including the Head Chef, who had full beards, but that each of them complied with the grooming standard because they were neat. The rationale for the standard was explained by her in some detail. She said it was important that staff looked well presented and hygienic, not only because the Hotel was engaged in the service of food but because it was expected of a corporate organisation. She also said that the standard applied to both front and back of house employees so as to avoid having a double standard within the Hotel. She conceded, however, that from the public's viewpoint, it was more important for employees to be well presented when they were dealing with the public, rather than behind the scenes. It is not a dispute that the Complainant was required to work, on occasions, in Nell's Restaurant as well as the staff canteen. While it is clear that he only had contact with the public when he was physically working in Nell's Restaurant, as distinct from the staff canteen, the evidence suggests that it was not usual for any advance notice to be given to him prior to going into the Restaurant. For example, Mr Fielding-Moore said that sometimes the Complainant would be required to take cutlery from the canteen to re-stock stations in the Restaurant. It is significant, too, that the Complainant said he was required to help in Nell's Restaurant when things were quiet in the staff canteen. Indeed, he said he complained about this because he saw it as a requirement to do two jobs. Furthermore, the written warning given to the Complainant on 19th February 1993 makes reference to the fact that the Complainant's duties required him to come into contact with the public. Taking all the above matters into consideration, we are satisfied that the Respondent's grooming standard was reasonable. However, the submissions of both parties do not appear to draw a distinction between the requirement that the Complainant comply with the Hotel's grooming standard and the requirement that he be clean shaven. Since the grooming standard permitted full beards, it is important to acknowledge the distinction. There is no evidence that the Complainant was ever told that the option of growing a beard was available to him. Nor is there any evidence that the Complainant ever made any inquiries about it, although he said he was aware that there were three other employees working in the Hotel at the relevant time who had beards. However, the evidence suggests that they were not working in front of house positions which involved the service of food and, in these circumstances, it is likely that the Complainant inferred that the grooming standard required him to be clean shaven. Significantly, there is no mention of the option of growing a full beard in Mrs Keogh's letter to the Board or in any of the written warnings given to the Complainant. We are satisfied that the practical effect of the application of the Respondent's grooming standard to the Complainant was that he was required to be clean shaven. In other words, we are satisfied that at the relevant time the Respondent imposed a requirement on the Complainant that he be clean shaven, as distinct from a requirement that he comply with the grooming standard. The distinction is also of significance in relation to the claim that the Respondent indirectly discriminated against the Complainant within the meaning of s.49A(3). Inability to Comply with the Requirement that he be Clean Shaven We accept that the Complainant failed to meet the requirement that he be clean shaven on 19th February, 18th April and 29th August 1993; and on those occasions in 1993 when Mr Fielding-Moore gave him a verbal, rather than a written warning. It is common ground that on all other occasions in 1993 he complied with the requirement that he be clean shaven. The Complainant gave evidence that he usually shaved with a razor blade at a basin in the bathroom. He said he had difficulty shaving because his back injury caused his legs to tremble, which made it very hard for him to stand unassisted. As a consequence, he said he was not always able to shave well and would cut his face or leave a stubble. He also said that it took him a lot longer to shave in a downward motion, rather than an upward one which gave him a clean shave. The Complainant's case was supported, to some extent, by the evidence of Dr. Hudson. He said that people with the Complainant's type of back injury can find it difficult to stoop over a basin without supporting themselves by resting a hand on the basin. He also gave evidence that the Complainant could have difficulty shaving under his chin as that movement usually requires an extension of the lumbar spine and, further, that standing on the one spot in an extended or bent position for, say, seven minutes would also aggravate his back condition. However, in cross-examination he said that with back education, there were a number of ways of ensuring that the Complainant could shave comfortably and reliably without doing his back any damage and without reproducing any symptoms. The cross-examination of the Complainant showed that he had not really pursued any ways of overcoming the problem. For example, he had not tried moving his bathroom mirror to an appropriate height or shaving with a battery powered or an electric razor. The Complainant said he had gone to a barber for a shave until it became too costly and that his wife had also attempted, albeit unsuccessfully, to give him a clean shave. In determining whether the Complainant was able to comply with the requirement that he be clean shaven, we propose to adopt the interpretation of compliance which has been applied in the context of the indirect discrimination provisions of the Act and comparable legislation. The reported decisions which have dealt with the issue show that compliance should be interpreted in a practical, rather than a theoretical sense so as not to defeat the objects of the legislation : see, e.g., Mandla v Dowell Lee ( 1983) 2AC 548: Byham v Preston City Council (1991) EOC 92-377; and Woods v Wollongong City Council & Ors (1993) EOC 92-486. In Mandla v Dowell Lee , supra, the issue before the House of Lords was whether, pursuant to s.1(1)(b) of the Race Relations Act 1976 , a private school had unlawfully discriminated against a young Sikh by refusing to admit him as a pupil at the school unless he agreed to cease wearing a turban. In determining that the young Sikh could not comply, in the sense intended by the Race Relations Act, with the "No turban" rule, Lord Fraser of Tullybelton (with whom the rest of the House of Lords agreed) said at pp. 565-566 : "The word 'can' is used with many shades of meaning. In the context of section 1(1)(b)(i) of the Act of 1976 it must, in my opinion, have been intended by Parliament to be read not as meaning 'can physically', so as to indicate a theoretical possibility, but as meaning 'can in practice' or 'can consistently with the customs and cultural conditions of the social group'." Similarly, in Byham v Preston City Council , op. cit., at EOC p. 78,66, it was found that the Complainant could not comply with a requirement that he gain access to the first floor via a staircase because he could only gain access with able-bodied assistance. Interpreting compliance in a practical sense, we are not satisfied that the Complainant was unable to comply with the requirement that he be clean shaven. In reaching this view, we have been particularly influenced first, by the Complainant's failure to pursue practical, simple alternatives to shaving with a razor at a basin; secondly, by Dr. Hudson's evidence that there were inexpensive ways of ensuring that the Complainant could shave comfortably and reliably without doing his back any damage or causing him pain; and, thirdly, by the fact that the Complainant was generally able to comply with the requirement in question. From the Complainant's perspective, the following findings are particularly relevant to the reasonableness of the request under consideration : ° The Complainant told Mr Fielding-Moore that he had been unable to shave that morning because of the pain in his back. ° He was not specifically told by Mr Fielding-Moore that he could shave in the Hotel. ° He told Mr Fielding-Moore that he could not return home to shave because of the pain in his back. ° He had previously told Mr Fielding-Moore and Ms Lesser that, on occasions, his back injury made it difficult for him to shave. ° He was not required to work on a daily basis in Nell's Restaurant. ° Discussions had taken place between Ms Lesser and the Union representative to the effect that consideration would be given to any difficulties the Complainant had shaving. From the Respondent's perspective, the aforementioned findings relating to the reasonableness of the Hotel's grooming standard and the Complainant's ability to comply with the requirement that he be clean shaven, together with the findings set out below, are relevant to the reasonableness of the request under consideration : ° The Complainant had previously been issued with warnings on three occasions when he had not come to work clean shaven. ° He had failed to provide Ms Lesser or Mr Fielding-Moore with any medical evidence to support his assertion that he was unable to shave on occasions when his back caused him pain. ° He was aware that he could be suspended from employment after receiving a third warning for not being clean shaven. Taking all the relevant matters into consideration, we are satisfied that the request that the Complainant be clean shaven, which was issued to him on 29th August 1993, was a reasonable one. It follows from this finding and our analysis of the events of 29th August-31st August 1993 that we are satisfied first, that it was reasonable for Mr Fielding-Moore to have requested that the Complainant leave the premises for not being clean shaven and secondly, that the Complainant's behaviour towards Mr Meade and Mr Fielding-Moore was, in fact, aggressive. Thus, prima facie at least, there appears to be some credence in the Respondent's assertion that the Complainant was dismissed solely because of his aggressive behaviour in response to a reasonable request. However, it is the Complainant's case that this reason is relied on by the Respondent in order to mask its unlawful conduct. He maintains that a number of matters cast sufficient doubt on the credibility of this reason so as to ground the inference that his physical impairment was an operative factor in the decision to dismiss him. These matters are summarised below : 1. The incident on 29th August 1993 was the only occasion on which the Complainant had ever displayed any form of aggression in his entire work history with the Respondent. 2. The Respondent failed to afford the Complainant an opportunity to respond to the version of the events of 29th August 1993 provided by Mr Fielding-Moore and Mr Meade. 3. The Complainant was regarded by senior management as an inefficient and troublesome employee because of his back injury. In relation to the first matter, both Mr Fielding-Moore and Mr Meade conceded that the Complainant's behaviour on 29th August was a "one-off". Mr Meade also said that he had never suspended anyone for aggressive behaviour prior to suspending the Complainant. The evidence does not reveal that the Complainant was an aggressive or overly argumentative person with whom the staff had difficulty working. However, we do not find that Mr Meade's decision to suspend the Complainant was motivated by his back injury, a general bias against him or a desire to be rid of him because he was an inefficient employee. On the contrary, the evidence shows that Mr Meade had displayed acts of kindness towards him on a number of occasions prior to 29th August. Significantly, the Complainant said that he regarded him as a good man and a friend. Mr Meade said that he had been friendly with him at work over a long period of time and had some sympathy for him because he had seen him change from being a happy, very hardworking and productive person to someone who didn't seen to enjoy life any more. Although he conceded that the Complainant had told him of the pain in his back on a reasonably regular basis, he said he attributed the change in the Complainant's behaviour to marital problems he was having with his wife, rather than to the fact that his back was painful. Like Mr Fielding-Moore, he said that he expressed the view to Ms Lesser that the Complainant's services should be terminated because of his aggressive behaviour. In relation to the second matter, Ms Healey submits that the Respondent should, at the very least, have obtained the Complainant's version of the events of 29th August 1993 and asked Mr Fielding-Moore to account for his actions in calling Mr Meade to remove the Complainant from the premises. We understand her to be submitting that, had the Complainant not been physically handicapped, Mr Fielding-Moore would have been required to account for his actions. The Respondent denies that it would have treated an employee without the Complainant's physical handicap any differently. Mr Crow submits that Mr Fielding-Moore acted quite reasonably in the face of the Complainant's refusal to remedy his breach of the Hotel's grooming standard and, in circumstances where he had been given a final warning for such breaches, the Complainant could not reasonably have expected any more leniency from the Respondent. Mr Crow further submits that in circumstances where a senior manager provides an employee with a detailed, contemporaneous, written report of an act of physical aggression towards him by another employee, and that act of aggression has been witnessed by another senior manager, an employee, acting in accordance with reasonable standards of business practice, would be entitled to terminate the employee's services. Whatever views we might hold as to whether the Complainant's conduct warranted his dismissal, we acknowledge that the issue before us is not whether the dismissal was, or was not, unfair. Rather, the issue we have to decide is whether the circumstances of the dismissal were such that they support the inference that the Complainant's physical impairment was an operative factor in the decision to dismiss him. When making this determination, it is important to appreciate that discrimination cannot be inferred when more probable and innocent explanations are available on the evidence: see Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147; Department of Health v Arumugam (1987) EOC 92-195; (1988) VR 319. In relation to the final matter concerning the Complainant's inefficiency, the evidence shows that Mr Fielding-Moore was not in favour of the Complainant's continued employment in the staff canteen because he viewed him as inefficient and troublesome. It also shows that senior management, including Ms Lesser, were aware of his views. However, we are not satisfied that this factor, either taken alone or in combination, supports an inference of unlawful discrimination. Based on our analysis of the relevant evidence, we are satisfied that the Complainant was dismissed by Ms Lesser on 31 August, rather than by Mr Fielding-Moore on 29 August. We are further satisfied that the reason for the Complainant's dismissal was based solely on his aggressive behaviour on 29 August, 1993 and that his physical impairment was not an operative ground of the dismissal. We now turn to discuss the Complainant's alternative claim of indirect discrimination. 2. Indirect Discrimination (1) The Requirement that the Complainant be Clean Shaven As mentioned previously, it is the Complainant's case that the Respondent imposed on him a requirement that he be clean shaven. However, it follows from our findings immediately above that we do not accept that the Complainant was dismissed, as alleged, on 29 August 1993 on the ground of his failure to comply with the requirement in question; nor do we accept that he was dismissed on 31 August 1993 as a consequence of his failure to comply with this requirement. Accordingly, we do not find that the Respondent indirectly discriminated against the Complainant pursuant to s.49B(2)(c) on the ground of his failure to comply with the requirement that he be clean-shaven. (2) The Requirement that the Complainant Lift Heavy Objects As mentioned at the outset of this decision, it is the Complainant's case that the Respondent imposed a requirement on him that he lift certain objects which, because of their weight, adversely affected his health or posed a risk to his health. However, it follows from our earlier findings that we do not accept that the Complainant was dismissed on 31 August 1993 on the ground of his failure to comply with the alleged requirement. Accordingly, we do not find that the Respondent indirectly discriminated against the Complainant pursuant to s.49B(2)(c) on the ground of his failure to comply with the alleged requirement. It follows from our analysis to date that we do not find the claim of unlawful discrimination arising out of the termination of the Complainant's employment substantiated. That being so, it is not necessary to discuss Mr Crow's submission that in the event of a finding of unlawful discrimination under s.49B(2)(c), we should decline to make an order for damages in favour of the Complainant in view of the settlement of proceedings for unfair dismissal brought by the Union on the Complainant's behalf in the Australian Industrial Relations Commission on 22nd September 1993. We turn now to discuss the claim that the Respondent engaged in both direct and indirect discrimination during the course of the Complainant's employment. (B) DISCRIMINATION DURING THE COURSE OF THE COMPLAINANT'S EMPLOYMENT 1. Direct Discrimination In relation to the claim of direct discrimination, Ms Healey submits that the Respondent afforded the Complainant less favourable terms and conditions of employment, pursuant to s.49B(2)(a), and/or subjected him to a detriment, pursuant to s.49B(2)(c), in the following ways : 1. The Complainant was subjected to harassment in that he was constantly asked by Mr Fielding-Moore to lift items or perform tasks which caused him back pain, and which Mr Fielding-Moore knew would cause him back pain. 2. By failing to provide the Complainant with either an adequate work environment or adequate supervision, the Respondent required the Complainant to work in an environment which threatened his health and safety. The Respondent denies that Mr Fielding-Moore harassed the Complainant in the manner alleged, or that it provided the Complainant with a work environment which threatened his health and safety. It is not in dispute that, as a result of his impairment, the Complainant's capacity for work was reduced and that, in recognition of this, the Respondent engaged him as an assistant in the staff canteen. Based on the Respondent's documentation, we are satisfied that this occurred in January 1993. We are also satisfied that the position was a casual one for 29 hours per week, that it involved weekend shifts, and that it was viewed by the Respondent as "light duties". Unfortunately, there is no evidence as to whether this was the designation prior to the Complainant taking up the position, nor is there any evidence of a formal job description. We accept the Complainant's evidence that the Union initially assisted him in negotiating both the "light duties" position and the provision by the Hotel of a stack of chairs so he could sit down to perform some of his duties without his feet touching the floor. We are also satisfied that Ms Lesser initially told him to see his manager or supervisor if he had a problem with lifting. Ms Lesser gave evidence that arrangements were made for other employees to lift items for the Complainant. However, her evidence was vague as to the details of the arrangements. In cross-examination, she said that she had instructed the Complainant to ask other employees, such as bus boys, to assist him. The Complainant denied this. On balance, we prefer his evidence on this point. The Complainant said that when he first commenced his duties in the staff canteen, he was not permitted to work in Nell's Restaurant. However, he said that, three days later, Mr Fielding-Moore changed his mind by directing him to work in Nell's Restaurant as well as the staff canteen. The Respondent's witnesses did not contradict this evidence and we are satisfied that the additional duties constituted a significant departure from the original "light duties" which had been agreed on between the Complainant and Ms Lesser. Based on the evidence given by both the Complainant and Mr Fielding-Moore, we accept that the Complainant performed the following duties whilst he occupied the position of staff canteen assistant : ° serving food to Hotel staff in the canteen from a bain-marie, ° cleaning the bain-marie, ° cleaning tables with a wet cloth, ° polishing cutlery, ° replenishing coffee, tea, sugar and the like. ° carrying plastic containers of dirty plates from the canteen, ° returning clean cutlery to the cutlery station, ° loading plastic containers of dirty plates and cutlery onto the conveyor feeding the dishwashing machine, ° collecting containers of food for the staff canteen from the first floor kitchen by trolley and, occasionally, on trays, and transferring them to the bain-marie, ° carrying plates into Nell's Restaurant without the assistance of a trolley, and ° carrying plastic containers of dirty cutlery from Nell's Restaurant for washing. With the exception of the last three duties, the Complainant described these tasks as everyday duties. It is clear that the Complainant's duties involved lifting, bending, carrying items, with and without the assistance of a trolley, and regular use of his hands and arms. We accept that he was required to perform a wide range of manual duties, some of which could reasonably be described as "fairly heavy". We also accept that no assistance was sought from a rehabilitation specialist as to whether the Complainant was able to perform these duties without risking further injury to his back. Based on the evidence presented in the Complainant's case, we accept that he could sometimes perform his duties without difficulty but at other times he was unable to do so without feeling pain. Dr Hudson gave evidence, which was unchallenged, that the Complainant's inability to lift and bend was consistent with the injury he sustained in 1989 and that the sequelae of chronic pain syndrome and depression can be secondary not only to the injury but other circumstances, such as difficulties in the workplace, which tend to follow such an injury. He said the Complainant's segmental instability was characterised by episodes of painful disability after a "minimally inciting incident". He also said that such incidents can reproduce pain out of ( sic ) proportion to what's wrong, that these attacks are usually limited and tend to recur, and are usually an expression of segmental instability secondary to an abnormal disc. Dr Hudson described the duties the Complainant performed at work in 1993 as "quite heavy" and said that people who have L5/S disc instability can often carry out quite heavy lifting techniques because they tend to brace and stabilise their lumbar spine. Significantly, he stated that lifting heavy items could potentially aggravate the Complainant's back condition, although he did not think it would cause permanent aggravation unless he was carrying items incorrectly. For example, he said that if the Complainant had been carrying heavy plates while repeatedly bending forward, and if he had experienced referred pain, it could have aggravated his condition on a permanent basis by causing more disc protrusion ( sic ). During the period in question, the Complainant said that he provided Ms Lesser with three medical certificates from Dr Holliday, who was his general practitioner at the time. However, only the certificate dated 7 February 1993 was tendered in evidence. In it, Dr Holliday expressed the view that the Complainant was fit for light duties and that, as a consequence of his back injury, he was unable to perform any heavy work duties involving heavy lifting, stooping or twisting motions. Dr Holliday did not give any examples of what she considered to be "heavy lifting". Surprisingly, Ms Lesser did not recall receiving this certificate. She did, however, recall discussing a medical certificate with a Dr Chan who she believed was the Complainant's general practitioner. She gave evidence that Dr Chan had written on the certificate, "light duties", and that he had told her that the Complainant needed assistance with lifting. Although she said this discussion would have occurred in 1993, it is more probable that it occurred earlier than this when the Complainant was working exclusively in Nell's Restaurant. Ms Lesser also said that she had no particular recall of the Complainant either coming to see her about Dr Holliday's certificate or complaining at the time that he was still being required to lift heavy items which caused him back pain. She conceded, however, that it was possible that he had done so. She also conceded that, during the period in question, the Complainant had come to see her and complained of back pain when he lifted items. She said, however, that it was very unlikely that the Complainant had ever complained to her that Mr Fielding-Moore had asked him to lift items which he was unable to lift. She expressly denied that the Complainant had ever complained to her that Mr Fielding-Moore had "made" him lift items. The Complainant gave evidence that he had sometimes complained to Ms Lesser that his back was hurting and that he couldn't cope with the lifting. Although he did not say when he complained, we are satisfied that it occurred during the period in question. Significantly, he said that Ms Lesser had many discussions with him about his light duties and his lifting restrictions. Moreover, he said that when he gave Ms Lesser a second medical certificate from Dr Holliday, she said that he did not need to keep giving them to her, to which he replied that he would continue doing so until the managers and supervisors learned not to make him lift things. Ms Lesser denied that this conversation had occurred. If accepted, it shows that the Complainant had complained to Ms Lesser that he was being required to lift certain items which, we infer, he was unable to lift without incurring back pain. The evidence of both the Complainant and Ms Lesser shows that, during the relevant period, the Complainant went to see Ms Lesser on an almost daily basis. We are satisfied that, on the majority of these occasions, he was complaining about his back injury. Indeed, Ms Lesser said that, as a consequence of the Complainant's visits, she was concerned that he was suffering from some sort of back pain. She denied, however, that he had ever complained to her that he had suffered pain as a consequence of being asked to lift something which was too heavy for him to lift. We do not accept this denial. We found her explanation for the Complainant's visits to her to be unconvincing and implausible. On balance, we prefer the evidence given by the Complainant on this issue. We find that, during the relevant period, the Complainant complained to Ms Lesser on a regular basis that he was suffering back pain, and, further, that he told her on a significant number of occasions, in effect, that he had suffered back pain as a consequence of being required to lift items which were too heavy for him to lift. The Complainant gave evidence that Ms Lesser had told him on a maximum of two occasions not to lift heavy items. Ms Lesser said that she had told him to ask for assistance from other employees when lifting heavy items. This particular instruction may well have been given to the Complainant when he was working exclusively in Nell's Restaurant. However, as we have previously found, we prefer the Complainant's evidence that, during the period in question, Ms Lesser told him to tell his supervisor if he was unable to lift something. At all relevant times, the Complainant was working alone when he was in the staff canteen and, although the staff canteen and Nell's Restaurant were separated by only a narrow corridor, assistance from other employees would have been less readily available than when he was working exclusively in Nell's Restaurant. Ms Lesser said she spoke to the Complainant's supervisors "continuously" about supervising his restriction against lifting heavy items. Aside from the occasion on which she spoke to Mr Fielding-Moore about his memorandum of 18 April 1993, she did not, however, give any details of what she specifically said. Her evidence on this issue was given in very general terms. Mr Fielding-Moore gave evidence that Ms Lesser had told him that the Complainant had a back problem and, in relation to anything "overly heavy", she had instructed him to get someone else to lift the item if the Complainant advised him it was too heavy to lift. In effect, he said that the decision as to whether an item was "too heavy" to lift was left up to the Complainant. Mr Fielding-Moore's memorandum of 18 April, 1993 was written shortly after the Complainant was issued with a written warning for arriving at work without being clean shaven. The memorandum is written in very strong terms and states, inter alia, the following : "My concern is why must we keep such an inefficient employee on our books when this hotel is quick to jump on some of us when our costs and productivity of staff is not up to scratch yet fails to react to this situation. If I am to be partly responsible for the operation of the canteen and using those individuals to assist in the reduction of my costs and increasing the productivity overall then I need employees who have some value, not ones who have a sore leg when it suits them or when they know a manager is around the corner. I am aware that Eddie has some medical problems but that is not my problem! Unless Eddie can be moved or terminated we will need to look at other alternatives for the management of the canteen." Mr Fielding-Moore was extensively cross-examined about the wording of the memorandum. Many of the answers he gave did not reflect favourably on his credit. We are satisfied that, during the period in question, he harboured considerable resentment towards the Complainant, regarded him as a slow and inefficient employee, and considered he was exaggerating, if not feigning, the effect of his back injury on his ability to carry out his duties, particularly his ability to lift heavy items. The evidence of both parties discloses that the Complainant complained to Mr Fielding-Moore on a number of occasions that he could not lift certain items because they were too heavy. However, it is disputed that on these occasions Mr Fielding-Moore directed that someone else help the Complainant. Mr Crow submits that the Complainant was prone to generalisations about the frequency of directions by Mr Fielding-Moore to do tasks which he considered to be heavy ones. He further submits that the Complainant was keen to denigrate Mr Fielding-Moore and that he was unable to give very few, if any, examples of a specific occasion when such a direction was given to him, and the terms of that direction. Although much of the Complainant's evidence on this point was given in general terms, it is clear that he was required to perform work which was outside the initial "light duties" agreed on between the Complainant and Ms Lesser. As discussed previously, we accept the Complainant's evidence that, three days after he commenced work in the staff canteen, Mr Fielding-Moore directed him to work in Nell's Restaurant as well as the staff canteen. We also accept the Complainant's evidence that, when he complained about this, Mr Fielding-Moore said, "Look, you're here to do what I tell you, because I'm your boss". He also gave evidence that on one occasion when he was asked to lift something which he felt he could not lift, he told Mr Fielding-Moore that he had a back injury which he got from the Hotel. He said Mr Fielding-Moore replied that he was very lucky to have a job. The Complainant gave evidence that he was specifically directed by Mr Fielding-Moore to carry stacks of plates into Nell's Restaurant as well as carry containers of cutlery out of the restaurant to be washed. He said that Mr Fielding-Moore required him to carry stacks of plates about 15 inches high which were extremely heavy. He estimated that a stack this high contained approximately 30 plates. He said he complained to Mr Fielding-Moore on a number of occasions about the agony in his back but was told that it was required as part of his duties and that it was only if the restaurant was not busy that he would see what could be done about it. He also said that, because of the time constraints, it was not possible to bring the plates in smaller stacks. By way of illustration, he said that three days before his dismissal he was carrying a stack of 10 or 15 plates at the one time but was told to get more plates because the restaurant was very busy. He also said that he was told not to use the trolley because trolleys were not permitted in the restaurant during operating hours. When he lifted the larger number of plates he said he felt pain and had to go to the locker to take some pain relief. He said he did as he was asked because he couldn't take the pressure and because he felt "mentally tortured" that he was going to lose his job. Although Mr Fielding-Moore agreed that one of the Complainant's duties was to take plates into Nell's Restaurant, he said that he had told the Complainant to take smaller stacks or to let his supervisor know if he couldn't carry them. He also agreed that trolleys were not used in the restaurant during operating hours. He conceded that there may have been an occasion when the Complainant was carrying 10 or 15 plates and he had asked him to get more plates because the restaurant was busy. However, he said that he had intended the Complainant to see if any more plates had "come through clean". He denied that the Complainant had ever carried stacks of plates which were 15 inches high and said instead that they were eight inches high. The Complainant also gave evidence that he had been asked by Mr Fielding-Moore to lift plastic containers filled to the top with over 100 pieces of cutlery in them. Mr Fielding-Moore conceded that he had directed the Complainant to lift containers of cutlery but denied that they had been either full or heavy. He also said that it was possible that there were a number of occasions on which the Complainant had been directed by him to lift containers of cutlery and had said he couldn't because his back was hurting. He agreed that each container could have had 100 pieces of cutlery in it. Despite having no specific recall, he said he would have arranged for somebody else to carry them. On balance, in relation to the duties the Complainant was required to carry out in Nell's Restaurant, we prefer the evidence given by the Complainant to that given by Mr Fielding-Moore. We did not find Mr Fielding-Moore to be a reliable witness. Much of his evidence lacked credibility and his recall of events was either poor or selective. Moreover, had he treated the Complainant in the manner he described, it is difficult to imagine why the Complainant would have found it necessary to complain so often to Ms Lesser. Accordingly, we make the following findings : ° The Complainant was required by Mr Fielding-Moore, on occasions, to carry stacks of plates, which were approximately 15 inches high, into Nell's Restaurant without assistance. ° The Complainant was required by Mr Fielding-Moore, on occasions, to carry containers filled with over 100 pieces of cutlery out of Nell's Restaurant without assistance. ° Both these duties could reasonably be described as "heavy" rather than "light" duties. ° The performance of these duties caused the Complainant back pain and Mr Fielding-Moore should have been aware that it was likely it would do so. ° The Complainant was required to perform duties in Nell's Restaurant which were outside his original "light duties" and which threatened his health and safety. It is common ground that the Complainant was required to clean the bain-marie every day. The Complainant said that he told Mr Fielding-Moore that he would be happy to clean it on the condition that he got someone to lift it for him and throw the water in the sink. He also said that Mr Fielding-Moore replied : "That's part of your job. You have to clean it every day, and you have to figure it out, how you're going to throw [out] the water." Mr Fielding-Moore denied that the above conversation had taken place but conceded that he had told the Complainant, on occasions, that he had to clean the bain-marie every day. The Complainant said that Mr Fielding-Moore had directed him to "lift" the bain-marie. Mr Fielding-Moore denied that he had ever told the Complainant to lift it and said it was "very, very heavy". He also gave evidence that it had a tap in one corner and a sloping floor to facilitate the drainage of water, although he said it was not necessary to lift one end in order to drain the water from it. Mr Crow submits that, having regard to the answers the Complainant gave in cross-examination and his difficulties with the English language, it is likely that the Complainant was giving evidence about frequent directions to clean the bain-marie, and that he chose to lift one end of the bain-marie to expedite the drainage of water from it. We accept this submission. In the absence of any reliable evidence, we do not find that Mr Fielding-Moore directed the Complainant to lift, as distinct from clean, the bain-marie. Aside from the evidence concerning the plates, the cutlery and the bain-marie, the Complainant did not give evidence of any specific directions given to him by Mr Fielding-Moore in relation to any of his other duties, nor did he say whether he was able to comply with them without incurring back pain. Accordingly, we make no findings in relation to them. Was the Respondent's Conduct Unlawful ? In respect of the Complainant's duties in Nell's Restaurant, we find Mr Fielding-Moore's conduct adversely affected the terms and conditions of the Complainant's employment. Moreover, the Complainant was clearly placed under a disadvantage as to a matter of substance, as distinct from a trivial matter, which resulted in him being subjected to a detriment : see O'Callaghan v Loder & Anor (1984) EOC 92-022 at pp. 75,506-75,507. Accordingly, we are satisfied that the abovementioned conduct constituted both a discriminatory condition of employment within the meaning of s.49B(2)(a) and a detriment within the meaning of s.49B(2)(c). We are further satisfied that, on the ground of his physical impairment, the Complainant was treated less favourably than able-bodied employees were or would have been treated in circumstances that were the same or not materially different within the meaning of s.49A(1). We now turn to discuss whether the Respondent is vicariously liable for Mr Fielding-Moore's discriminatory conduct. Mr Crow submits that the conduct in question was committed by Mr Fielding-Moore without the express or implied authorisation of the Respondent. Accordingly, by virtue of the operation of s.53 of the Act, he contends that the Respondent should not be held liable for Mr Fielding-Moore's conduct. At all material times, s.53 of the Act relevantly provided:- "An act done in contravention of this Act by a person as the ... employee of another person shall be deemed, for the purposes of this Act, to be done by his ... employer as well as by him unless his ... employer did not, either before or after the doing of the act, authorise him, either expressly or by implication, to do the act." In support of his submission, Mr Crow places particular reliance on the evidence of Ms Lesser. He submits that it is abundantly clear that, through her, the Respondent took steps to inform and direct supervisors, particularly Mr Fielding-Moore, that the Complainant should not be permitted or required to do heavy work. Ms Lesser gave evidence that she repeatedly reinforced this direction. Mr Fielding-Moore's evidence suggests that she gave the direction to him on at least two occasions. When asked questions about his memorandum of 18 April 1993, he said that, prior to this date, Ms Lesser had told him that the Complainant had a back problem and that he couldn't lift things that were too heavy. He said he was unable to recall the date. He also said that, when Ms Lesser spoke to him about his memorandum, she told him again that the Complainant had a back problem and that if he found anything too heavy to lift he was to call the supervisor on duty at the time. We are prepared to accept Ms Lesser's evidence that she repeatedly reinforced the direction that the Complainant not be required to do heavy work. This is consistent with the Complainant's evidence that he repeatedly complained to her about this requirement. Although Ms Lesser did not expressly say so, she must have become aware in early 1993 that the Complainant was working in Nell's Restaurant performing duties which were outside his original "light duties" in the staff canteen. We are also prepared to accept Mr Fielding-Moore's evidence that, when the Complainant commenced his "light duties", he was instructed by Ms Lesser that if the Complainant advised him that an item was too heavy to lift, he was to get someone else to lift it. As early as 7 February 1993, when the Complainant gave Ms Lesser a medical certificate from Dr Holliday stating that he was unable to perform any heavy work duties, Ms Lesser should have been aware that her directions to Mr Fielding-Moore were not being carried out. Against this background, and in circumstances where the Complainant was complaining to her about his back pain and that he was being required to lift heavy items, Ms Lesser did not take adequate steps to ensure that her directions were being carried out so that the Complainant was, in reality, only performing "light duties". It was not sufficient for her to simply give directions to Mr Fielding-Moore that the Complainant not carry out heavy duties without taking steps to ensure that the Complainant's adverse working conditions were rectified. Had she obtained first hand knowledge of these conditions, measures could have been taken to ensure, for example, that other staff were available, in practice, not just in theory, to assist the Complainant when he required assistance. Taking into account all the circumstances, we are not satisfied that the Respondent has established, on the balance of probabilities, that it did not authorise Mr Fielding-Moore's discriminatory conduct. Accordingly, we are satisfied that, pursuant to both ss. 49B(2)(a) and 49B(2)(c), the Respondent is liable for his conduct. Having found the complaint of direct discrimination arising out of the Complainant's employment substantiated, it is not necessary to consider the alternative claim of indirect discrimination. Before we turn to discuss the final claim, that the Respondent indirectly discriminated against the Complainant on the ground of his failure to comply with the Hotel's grooming standard during the course of his employment, we wish to deal briefly with Mr Crow's submission that the claim we have just found substantiated should be dismissed, under either s.111(1) or s.113(1)(a) of the Act, on the basis that it is frivolous, vexatious, misconceived or lacking in substance. In support of his submission that the complaint should be dismissed under s.111(1), Mr Crow contends that no mention was made of the complaint in the Complainant's handwritten letter of complaint to the Board, dated 13 September 1993, in his original Points of Claim or in his first affidavit. Ms Healey submits that, had the Respondent wished to proceed with an application under s.111(1), it would have been more appropriate for it to have been made at the commencement of the proceedings. The wording of s.111(1) makes it clear that the provision is available at any stage of an inquiry. However, nothing has been put before us which would make it appropriate to exercise the power conferred by the provision in the present case and at this late stage of the inquiry. Although Mr Crow did not specifically address the point, s.111(1) confers the power to dismiss a complaint if "for any other reason" the Tribunal is satisfied that the complaint should not be entertained. Accordingly, if the present complaint were not validly before us, we Herring v Benevolent Society of NSW & Anor (1991) EOC 92-328 at pp. 78,255-78,256. The Complainant's failure to make any reference to the requirement in question in his first affidavit and his original Points of Claim can adequately be explained by the fact that he did not receive full legal representation until October 1995. 2. Indirect Discrimination : the Requirement that the Complainant be Clean Shaven We have previously found that the practical effect of the application of the Hotel's grooming standard to the Complainant was that he was required to be clean shaven. For the reasons given earlier in relation to the Complainant's inability to comply with the requirement in question at the time of his dismissal, we find that the Complainant was able to comply with this requirement during the course of his employment. Accordingly, since proof of inability to comply is a prerequisite to mounting a successful claim of indirect discrimination within the meaning of s.49A(3), it follows that the present claim must fail. Accordingly, we do not find that the Respondent indirectly discriminated against the Complainant, pursuant to ss. 49B(2)(a) and/or 49B(2)(c), on the ground of his failure to comply with the Respondent's grooming standard. Damages Pursuant to s.113(1)(b)(i) of the Act, the Complainant seeks an order for general damages for pain and suffering, including anxiety, depression, hurt and humiliation. This provision permits us to order the Respondent to pay to the Complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the Respondent's conduct. Mr Crow submits that we should decline to award damages because there is no, or not sufficient, evidence of any loss or damage suffered by the Complainant as a result of the Respondent's conduct. In particular, Mr Crow relies on the absence of any medical evidence that the Complainant's back deteriorated as a consequence of being required to perform heavy tasks or that he suffered stress and distress from Mr Fielding-Moore's requests to undertake heavy duties. While there is no evidence of any further injury to the Complainant's back, we are satisfied that he suffered considerable physical pain as a consequence of being required to perform heavy duties in Nell's Restaurant. We also find that he felt intimidated and pressured by Mr Fielding-Moore's discriminatory conduct and that it adversely affected his psychological well-being and his ability to sleep. In particular, it heightened the anxiety and depression caused by his original back injury. Taking into consideration all of the relevant matters, we propose to award the Complainant general damages in the sum of $10,000.00. Costs On behalf of the Complainant, Ms Healey seeks an order for costs. The general rule concerning costs, set out in s.114(1) of the Act, provides that each party to an inquiry shall pay his or her own costs. However, s.114(2) confers the power to order costs in a particular case where the Tribunal is of the opinion that there are circumstances that justify it doing so. No submissions were advanced by Ms Healey in support of an order for costs and we find that there are no circumstances in the present case which would justify such an order. Accordingly, we see no reason to depart from the general rule that each party pay their own costs. Orders In summary, we find that the complaint of unlawful discrimination on the ground of physical disability has been substantiated but only in relation to the claim that the Respondent directly discriminated against the Complainant, pursuant to ss. 49B(2)(a) and 49B(2)(c), by requiring him to carry out heavy duties. We order that the Respondent pay the Complainant within 21 days general damages in the sum of $10,000.00. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.